“Ensuring A Fair Policy”: Reagan And Bush Acted Unilaterally On Immigration, Too—For The Same Reason That Obama Will
On Tuesday, the Associated Press reported that two previous Republican presidents—Ronald Reagan and George H.W. Bush—had taken unilateral action to protect undocumented immigrants from deportation, and the political reaction was much less vitriolic than what Obama has faced as he prepares to make a similar move. Conservatives, notably The Atlantic’s David Frum and National Review’s Mark Krikorian, quickly pushed back. Frum argues that, while legal, Obama’s upcoming executive action would be an unprecedented violation of political norms. Krikorian goes further, calling it “Caesarism, pure and simple.” But in the end, though they differ in their vehemence, both Krikorian and Frum’s analyses do more to reveal the flaws in the conservative position than prove the lawlessness of Obama’s upcoming action.
Krikorian and Frum’s main argument is that Reagan and Bush’s unilateral actions were simply fixes to the 1986 immigration law that granted green cards to three million undocumented immigrants. Reagan and Bush discovered that, due to an unintended consequence of that law, many spouses and kids of newly-legalized immigrants faced deportation, potentially tearing families apart. In response, Reagan and Bush implemented “cleanup measures,” as Krikorian terms them: In 1987, Reagan’s Immigration and Naturalization Service announced that kids of newly-legalized immigrants would not be deported; Bush extended those protections to spouses in 1991.
According to Krikorian and Frum, these actions reflected Congress’s intentions because the legislative branch codified Reagan and Bush’s executive action into law in 1992. “Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose,” Frum writes. “Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s (relatively small) and Bush’s (rather larger) executive actions tidied up these anomalies.” In other words, it would be unfair if Reagan and Bush deported children and spouses of newly-legalized immigrants. In fact, Bush’s executive action was called the “family fairness” program.
In contrast, they argue, Obama’s executive action is not what Congress intended. “A new order would not further a congressional purpose,” Frum writes. “It is intended to overpower and overmaster a recalcitrant Congress.” Krikorian was even more emphatic: “Whatever their merits, the Reagan and Bush measures were modest attempts at faithfully executing legislation duly enacted by Congress. Obama’s planned amnesty decree is Caesarism, pure and simple.”
What both Frum and Krikorian’s analyses fail to explain is how Obama’s planned action is not a faithful attempt at executing the law. You can’t argue that Obama’s “order would not further a congressional purpose” without explaining what Congress’s purposes are in passing immigration laws. This error isn’t unique to Frum or Krikorian: Conservatives often fail to use a legal framework in analyzing Obama’s action.
In August, I employed such a framework to explain why Obama’s executive action is legal because it’s based on the idea of prosecutorial discretion—the federal government has only limited resources to implement laws and must prioritize them accordingly. But prosecutorial discretion has limits because Congress has the sole authority to write laws. If the president’s actions do not uphold Congress’s priorities—or, in Frum’s words, further a congressional purpose—it crosses the line into lawmaking.
A major priority of immigration law is deterrence. The more the federal government allows undocumented immigrants to stay and work legally in the United States, the more it incentivizes foreigners to come here illegally. That’s why conservatives see Obama’s executive actions as an unfaithful execution of the law. But Congress has other, competing priorities in passing legislation. They want laws to be uniform, predictable and fair, for instance.
When the federal government implements immigration law, it must balance these priorities. In other words, the benefits of making the immigration system fairer must be greater than the costs of reducing deterrence. To an extent, of course, these are subjective judgments. But as long as Obama, or any president, for that matter, is implementing the law in line with congressional priorities—as I believe Obama is—his actions are legal.
In applying this framework to Obama’s upcoming executive action, the law supports the administration’s position. The change in immigration policy may remove a deterrent for foreigners considering illegally immigrating to the U.S. But the drop in deterrence is small, since the potential beneficiaries of Obama’s action must have lived in the U.S. continuously for many years. Foreigners cannot come into the country illegally under the expectation that the president will soon grant them protection from deportations.
On the other hand, the benefits of these actions are significant. They allow undocumented immigrants to come out of the shadows, work legally, and receive legal protections under U.S. law. They no longer have to worry about a discriminatory immigration system. Maybe most importantly, the new policy will prevent families from being torn apart—which was the main reason behind Reagan and Bush’s executive actions, which Frum and Krikorian believe was justified.
It’s impossible to pick a specific point where the costs outweigh the benefits of Obama’s actions. As Obama shields more undocumented immigrants from deportation, the costs of the policy grow significantly. He risks crossing the line from upholding congressional priorities into lawmaking. But conservatives haven’t offered a legal framework to explain how Obama’s expected executive action crosses that line. Bush and Reagan’s actions were legally acceptable for the same reason Obama’s would be: ensuring that our immigration policy is fair.
By: Danny Vinik, The New Republic, November 19, 2014
“It Isn’t About The Substance At All”: Why Republicans Are So Mad About Obama’s Immigration Order
President Obama is going to detail some executive actions he plans to take on immigration in a speech tonight, and you may have noticed that the debate over this move is almost completely void of discussion of the particulars. Instead, we’re discussing whether Obama is exceeding his powers. That’s an important question to address, but it also frees Republicans (for the moment anyway) of having to visibly argue for things like deporting the parents of kids who are already allowed to stay in the United States.
One thing you’ll notice as you watch coverage of the issue is that Republicans are seriously pissed off at Obama. And not in the faux outrage, pretend umbrage way—they are genuinely, sincerely angry. And while there may be a few here or there whose blood boils at the thought of an undocumented immigrant parent not living in constant terror of immigration authorities, for the vast majority it isn’t about the substance at all. So what is it about? Here’s my attempt at explaining it.
Obama is not showing sufficient deference to their midterm election win. Republicans just won an election, and like any party that wins an election, they feel that the American people validated all of their positions and everything they’d like to do, and rejected those of Democrats. There are reasonable arguments to be made against this belief. For instance, you could point out that since turnout in this election was an abysmal 36 percent and Republicans got a little over 50 percent of the votes for the House, they actually got a thumbs-up from only 19 percent of the electorate, which isn’t exactly “the American people.” Or you could note that if you add up the votes received by all 100 senators in the new GOP majority, the Democrats actually got 5 million more votes. These things may be true, but they don’t reduce the Republicans’ sincere belief that they have the people behind them. Whether they actually expected Obama to put aside his entire agenda because of the election, the fact that he shows no interest in doing so is obviously maddening to them.
Obama is backing them into a political corner. Republicans would frankly prefer not to have to talk about immigration at all, outside election-year pitches to primary voters about broken borders. Their fundamental dilemma is that on the local level, most of them have constituencies that are deeply hostile to immigrants and opposed to comprehensive reform, yet on the national level, the party must make inroads with Hispanic voters to have hopes of winning the White House. A big confrontation over immigration puts their crazy nativists like Steve King on the news and serves to convince those Hispanic voters that the GOP has nothing but contempt for them and people like them. Those crazy people are convinced that a big part of the motivation for Obama’s move is to create new Democratic voters (which it wouldn’t do), while the more sensible ones worry that it will make their task of winning Hispanic votes even harder (which it will do).
This move also seizes the agenda from them, in a way that divides Republicans against themselves. As Lisa Mascaro and Michael Memoli reported in an excellent article in today’s L.A. Times, “Republican leaders who had hoped to focus on corporate tax reform, fast-track trade pacts, repealing the president’s healthcare law and loosening environmental restrictions on coal are instead being dragged into an immigration skirmish that they’ve tried studiously to avoid for most of the last year.”
The only real way for them to stop him is to shut down the government, and they’re also probably mad that he has forced them into that internal and external debate. Not only are they now arguing amongst themselves about it (again), it means they have to put up with a lot of “Are you going to shut down the government?” questions from reporters, which have as their subtext, “Are you going to prove all over again what a bunch of reckless maniacs you are?” Their attempts to argue that if there’s a shutdown it will be Obama’s fault and not theirs will inevitably be rejected by both the press and the public, leading to even more resentment, since they feel as though they’ll be blamed for something that is his fault.
Aggressive Obama is bad Obama. Let’s face it, many if not most Republicans have never considered Barack Obama a legitimate president. This applies not just to Republican voters—49 percent of whom believed that ACORN stole the 2012 election for him, which would have been particularly difficult for the organization to accomplish given that it ceased to exist in 2010—but to its elected officials as well. Although it has calmed down of late, let’s not forget just how many years Obama spent trying to persuade people that he is, in fact, an American, including producing his birth certificate. Republicans have in the past viewed any Democratic president as having suspect legitimacy, but it’s been worse with Obama than prior presidents.
For that reason, Republicans have found even the most mundane exercise of his presidential power to be deeply disturbing. His bold move of hiring people to work on the White House staff was met with horrified cries that he had created “czars” who were wielding despotic and unaccountable power. When he set rules for federal contractors, as every president does, they were aghast. These kinds of things didn’t bother them when Republican presidents did them not only because they agreed with the substance of whatever those presidents were doing, but also because they regarded those presidents’ power as legitimately held. Over time, the narrative of Obama’s “lawlessness” took hold on the right, and ended up being applied to almost any executive branch action they didn’t like. In this case, he actually is approaching the limits of his authority, which makes it all the worse.
Obama is making them feel impotent. This is where all the other pieces come together. Being in the opposition party can be frustrating, because your role is fundamentally not to do things, but to try to stop the president from doing things. That’s an important task, but it isn’t quite as satisfying as remaking the country to suit your vision. Republicans’ greatest fear about this is that Obama will go ahead and do what he wants and they won’t be able to stop him, even though they worked so hard to gain full control of Congress after six long years. They won the election, his approval ratings are low, they firmly believe they’re right, and yet this president they loathe so much is about to just walk all over them anyway. No wonder they’re mad.
By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 2014
“Dumb And Dumber”: House Republicans Vote To Deport As Many Kids As Possible
Dumb and dumber. That’s the best way to describe two bills passed by House Republicans on Friday night. They passed a supplemental funding bill allocating about $700 million for the crisis on the border. It includes changes to current law that will make it easier to send child migrants back to Central America. They also voted to wind down the Obama administration’s Deferred Action program for young immigrants. So forget about comprehensive reform: House Republicans have settled on the “Let’s deport as many kids as possible” approach.
These two bills do not represent a coherent response to our border crisis. They reflect House Speaker John Boehner’s failed leadership as well as the triumph of immigration extremists. While these bills will have zero policy impact, the GOP will likely feel their political impact for years to come — and not in a good way.
To understand why these bills passed, let’s back up for a moment. Recall that Speaker Boehner originally wanted to vote on a border crisis bill on Thursday. But he couldn’t round up enough votes, and the bill was pulled. This was a major embarrassment for the Speaker. Amazingly, Boehner then suggested that President Obama should take executive action on immigration. “There are numerous steps the president can and should be taking right now, without the need for congressional action,” he said in a statement, “to secure our borders and ensure these children are returned swiftly and safely to their countries.”
Huh? Right now the House is suing the president for taking executive action. For the Speaker to suggest that President Obama act on his own on immigration is inconsistent and hypocritical (Does that mean he will support the president’s expected executive action on immigration?).
As it turned out, in order to get the votes for a border bill Boehner allowed a vote on a bill that would end the Deferred Action for Child Arrivals (DACA) program. Introduced by the Obama administration in 2012, DACA grants relief from deportation to undocumented immigrants brought illegally to the U.S. as children. About half a million of these young people, also known as Dreamers, have so far qualified for its protection.
In case you’re wondering, DACA has nothing to do with the crisis on the border. Although some Republicans have surmised that it caused the ongoing influx of child migrants, there is no evidence to support this claim.
Now Boehner can say that House Republicans did something on immigration before they left for the August recess. Yet this is a hollow victory, because these bills are going nowhere. The Senate would never approve them and even if they did, the president has pledged to veto them.
The anti-DACA vote, however, will have real consequences for the Republican Party. Consider that recent polling from Latino Decisions showed that 75 percent of Latino voters said that any move to dismantle DACA would make them less favorably inclined towards the GOP. Ana Navarro, a Republican strategist, tweeted that the anti-DACA vote “antagonizes Latinos, energizes Democratic base, and emboldens the GOP ‘No’ caucus.” She is right — and the GOP will be paying the price for years to come. Two hundred sixteen House members, many of whom harbor national ambitions, are now on record as opposing a policy supported by overwhelming majorities of Latino voters.
Obviously, a majority of House Republicans supported these measures — or they wouldn’t have passed. “The changes brought into this (the border bills) are ones I’ve developed and advocated for over the past two years. It’s like I ordered it off the menu,” Rep. Steve King (R- Iowa) told CQ Roll Call. The fact that the GOP position on immigration is now in sync with King, a man who once compared Dreamers to drug mules, should be alarming to Republicans concerned about their long-term viability as a national party. As disappointing as President Obama has been on immigration, these mean-spirited votes make it clearer than ever which party values Hispanic voters.
Friday’s House votes were a sad spectacle. On immigration, the GOP has taken another hard lurch to the right, and Latino voters will not soon forget it.
By: Raul A. Reyes, The Huffington Post Blog, August 4, 2014
“Abandoning The Pretense Of Seriousness”: GOP Motivations Have Nothing To Do With Governing
The new House Republican leadership team, facing its first real test yesterday, failed miserably. They backed a bill that ostensibly addresses the humanitarian crisis at the U.S./Mexico border, but the bill died before it even reached the floor. Rank-and-file Republican lawmakers had rejected their own party’s bill.
But instead of leaving town for Congress’ five-week break, GOP lawmakers met this morning to work something out, and by all appearances, Speaker John Boehner and his team effectively told right-wing members, “Tell us what you want and we’ll say yes.” The result is a new bill, set to pass this afternoon.
House Republicans are taking a second shot at passing a border funding package Friday after party leaders failed to whip enough support among conservatives and were forced to pull legislation Thursday. The new version of the bill will add $35 million to offer states that dispatch National Guard service members to the border, adding up to $694 million in emergency funding relief to cope with the flood of unaccompanied minors streaming into the United States.
Unwilling to leave Washington without first passing a border package, lawmakers aim to vote on the revised legislation Friday along with a separate vote on legislation to undercut laws protecting young undocumented immigrants.
To appreciate what the House GOP has come up with, note that Reps. Steve King (R-Iowa) and Michele Bachmann (R-Minn.), two of the fiercest opponents of the bill that died yesterday, think this new proposal is awesome.
[Update: King told Roll Call, “The changes brought into this are ones I’ve developed and advocated for over the past two years. It’s like I ordered it off the menu.”]
The agreement conservative Republicans reached with very conservative Republicans can charitably be described as a bad joke. This legislation wouldn’t address the humanitarian crisis in any meaningful way, and really doesn’t even try.
The Washington Post’s report conceded the legislation “would do little to immediately solve the crisis along the U.S.-Mexico border but would allow [Republican lawmakers] to go home and tell voters that they did what they could.”
In other words, the post-policy House majority is putting on a little show this afternoon. Even marginally informed observers will recognize this as pointless theater, but GOP members won’t care because the point of the exercise will be to create a talking point – one that no fair-minded person will believe anyway.
Some of the details are still elusive, but reports suggest that the right was satisfied when Republican leaders agreed to advance provisions that not only support deportations of Dream Act kids, but also blocks current Dreamers who are already benefiting from the Obama administration’s DACA policy from renewing their participation in the program.
As a practical matter, this makes the bill more of a far-right fantasy than an actual plan. The motivations behind it have nothing to do with governing. Indeed, the very idea is laughable under the circumstances – it’s not as if the Speaker’s office has been in communication with Senate Democrats and the White House, looking for some common ground on a proposal that could become law.
Rather, Boehner, bruised and embarrassed, gave up. The goal this morning was to craft a new plan that makes far-right extremists happy. And that’s precisely what they’ve done.
Of course, the charade would be easier to pull off it weren’t quite so transparent. Republicans will spend the next five weeks saying, “See? We did our jobs!” it will be painfully obvious that their claims are as misleading as they are demonstrably ridiculous. For GOP lawmakers to have done their jobs, they would have had to agree to a serious proposal that related in some meaningful way to the task at hand.
That is clearly not what’s happened.
As for the road ahead, Sahil Kapur reports, “The plan is to have two votes: the first one is on the supplemental and tougher border language to swiftly send home children coming from Central American countries. If that passes, there’ll be a second vote on the bill to end the Obama administration’s Deferred Action for Childhood Arrivals program and stop the president from granting legal status to anyone in the U.S. illegally.”
If Republicans get on planes this evening feeling good about themselves and their accomplishments, they’re not paying close enough attention. They’ve become the Cruz/Bachmann/King Party – which is exactly the opposite of what party leaders had in mind at the start of this Congress.
By: Steve Benen, The Maddow Blog, August 1, 2014
“Short-Term Pain Isn’t A Problem”: How Republicans Are Heightening The Contradictions
Congress is going on recess at the end of this week, and they’ll be doing it without a bill to address the large number of Central American children showing up at the southern border—John Boehner couldn’t even come up with a bill that would pass his house after Ted Cruz convinced House conservatives to oppose it. On that issue, on the Affordable Care Act, and on other issues as well, we may be seeing the rise of a particular strategy on the right—sometimes gripping part of the GOP, and sometimes all of it—that can be traced back to that noted conservative Vladimir Lenin. I speak of “heightening the contradictions,” the idea that you have to intentionally make conditions even more miserable than they are, so the people rise up and cast off the illegitimate rulers and replace them with you and your allies. Then the work of building a paradise can begin.
In the end, the House GOP leadership wanted a bill that contained a small amount of money to actually address the problem, made a policy change Republicans want (expediting deportations of Central American children), and did some things that don’t address the problem at all (like beefing up border security, which is irrelevant since these kids are happily turning themselves in). But the conservatives wanted to attach a provision to the bill that would also undo the Deferred Action for Childhood Arrivals (DACA) program, under which “dreamers” who have been in the U.S. since before 2007 can stay under certain conditions.
As Cruz and his allies knew quite well, while the broader GOP bill faced an uncertain fate in the Senate, a bill that had DACA repeal attached to it had zero chance of passing there. So what was the point? It may be that they were thinking along the same lines as conservative wise man Bill Kristol, who today told Republicans to pass nothing and let Barack Obama take the blame:
If the GOP does nothing, and if Republicans explain that there’s no point acting due to the recalcitrance of the president to deal with the policies that are causing the crisis, the focus will be on the president. Republican incumbents won’t have problematic legislation to defend or questions to answer about what further compromises they’ll make. Republican challengers won’t have to defend or attack GOP legislation. Instead, the focus can be on the president—on his refusal to enforce the immigration law, on the effect of his unwise and arbitrary executive actions in 2012, on his pending rash and illegal further executive acts in 2014, and on his refusal to deal with the real legal and policy problems causing the border crisis.
Hooray! Sure, the crisis that they’re allegedly so angry about would continue unabated. But what’s that next to a little political difficulty for Barack Obama?
Something quite similar is happening on the Affordable Care Act. The phrase you now hear from everyone on the right is that the law will “collapse under its own weight,” which is a way of saying that even though there’s been nothing but good news lately about how the law is going, it’s so awful that it will inevitably cause such horrible suffering that everyone will come to agree with us that it must be repealed. “I think it’s going to collapse under its own weight in time,” says Paul Ryan. “Obamacare will collapse under its own weight,” writes Phil Gramm in the Wall Street Journal. “Eventually, all this is going to collapse around them,” says Rep. Marsha Blackburn about the law.
That “collapse” is a fantasy that will never happen, but let’s take them at their word when they say it will. While they never get specific about what the collapse will look like, by definition it would be disastrous for millions of Americans. Would they lose their insurance coverage, or be unable to get treatment for serious medical conditions? It would have to be something like that to constitute a “collapse.” And the Republican position isn’t, “This collapse is coming, so we’d better work hard to make sure it doesn’t and insulate vulnerable Americans from its effects.” Instead, their position is, “This collapse is coming, so we’ll just wait until the nightmare of suffering and death plays itself out, after which we’ll be there to offer our as-yet-undetermined health care alternative.”
The Halbig lawsuit that Republicans are all guffawing about was nothing if not an effort to heighten the contradictions and accelerate the collapse. If it succeeds, insurance subsidies will be taken away from Americans in 36 states, making coverage unaffordable for millions. Republicans won’t say explicitly that this is the outcome they desire, but it’s the only reason to file the lawsuit in the first place. And of course, if the disaster of those millions losing coverage was something Republicans wanted to forestall, they could do it in an afternoon. Just pass a short bill making clear that subsidies apply in every state, and the problem would be solved. But that, of course, wouldn’t heighten the contradictions.
This idea has its limits—for instance, Congress is probably going to pass some short-term fix for the highway trust fund before tomorrow. But that’s because it would be harder for Republicans to escape blame for the consequences when all those construction projects start shutting down. If there’s any way at all for Obama can take the fall on an issue, they’ll do it.
To be sure, there is a certain logic at work here. Like every political party, today’s Republicans believe that if they were in complete control, their preferred policies would be so glorious and work so well that the total of suffering in the country would be reduced to microscopic levels. So some increased suffering in the short term is tolerable if it helps us get closer to that future nirvana. That’s of some reassurance, right?
By: Paul Waldman, Contributing Editor, The American Prospect, July 31, 2014
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